Copyright and Fair Use

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A healthy copyright system must balance the need to provide strong economic incentives through exclusive rights with the need to protect important public interests like free speech and expression. Fair use is foundational to that balance. It's role is to prevent copyright from stifling the creativity it is supposed to foster, and from imposing other burdens that would inhibit rather than promote the creation and spread of knowledge and learning.

The Fair Use Project (FUP) was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom and protect important public rights. It is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests. The FUP has litigated important cases across the country, and in the Supreme Court of the United States, and worked with scores of filmmakers and other content creators to secure the unimpeded release of their work.

Julie is a Non-Residential fellow with Stanford CIS. She represents writers, filmmakers, musicians, and others who rely on fair use in creating their works. Julie has represented visual artist Shepard Fairey in copyright litigation against The Associated Press over Fairey’s “Obama Hope” posters, RDR Books in its copyright and Lanham Act dispute with J.K.

Tim is a Fellow at the Center for Internet & Society. He splits his time between representing authors, filmmakers, musicians, and others who rely on copyright fair use in creating their works, and pursuing a scholarly research agenda. Tim’s research interests include trademark theory, copyright and trademark fair use, and various doctrinal areas governed by the First Amendment, including commercial speech and campaign finance regulation.

Annemarie Bridy is a Professor of Law at the University of Idaho College of Law, where she teaches intellectual property and technology law. Her research focuses on the impact of disruptive technologies on legal frameworks for the protection of intellectual property and the enforcement of intellectual property rights. An active scholar, Professor Bridy has published numerous law review articles and book chapters, many of them on the evolving role of online intermediaries in digital anti-piracy and anti-counterfeiting operations.

Ben Depoorter is a Professor of Law and Roger Traynor Research Chair at the University of California, Hastings. He is a graduate of Yale Law School (L.L.M., J.S.D.) and also holds a J.D. (1999) and PhD (2003) from Ghent University and a Master's degree from the University of Hamburg (2001). He completed his studies at Yale Law School (2003) on a full scholarship from the Belgian American Educational Foundation (BAEF). As an Oscar Cox Fellow at Yale, Depoorter conducted research as a John M. Olin Fellow in Law, Economics, and Public Policy. He was a Santander Research Fellow at U.C.

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The US Supreme Court issued opinions in two important First Amendment cases this week, one of which obviously had to do with intellectual property law (Matal v. Tam) and one of which didn’t (Packingham v. North Carolina). There is, however, an implicit IP angle in Packingham that’s worth exploring, and it relates to online copyright enforcement.

The Pirate Bay (TPB), that perennial nemesis of copyright holders, is on the ropes again following the CJEU's decision this week in BREIN v. Ziggo. BREIN, the Dutch entertainment industry trade group, sued two ISPs—Ziggo and XS4ALL—seeking a court order to compel them to block the domain names and IP addresses of the legendary torrent sharing site. The Supreme Court of the Netherlands referred two questions to the CJEU: (1) whether TPB’s operation of a searchable index of torrent files violates copyright holders’ right of communication to the public under Article 3(1) of the EU InfoSoc Directive; and (2), in the event that it does, whether the requested injunctions are appropriate against intermediaries under Article 8(3) of the InfoSoc Directive and Article 11 of the IPR Enforcement Directive. This post will focus on the first question, concerning TPB’s liability for unauthorized “communication to the public.”

“Loaded” Kodi set-top boxes are back in the copyright news again this week. (If you’re wondering what Kodi boxes are, and what they have to do with copyrights, here’s a backgrounder.) The CJEU has decided BREIN v. Wullems, a case involving the rights of communication to the public and reproduction.

This is the last of three posts on the Ninth Circuit’s decision in Mavrix v. LiveJournal. The first post considered the court’s conclusion that LiveJournal’s moderation and curation of user-submitted posts created a triable issue of fact on the question of the site’s eligibility for the section 512(c) safe harbor for sites that store material “at the direction” of users. The second post examined the court’s analysis of LiveJournal’s potential knowledge of the alleged infringements in light of the fact that Mavrix didn’t send takedown notices for them. This final entry takes a look at what I identified in the first post as issue (4): whether LiveJournal had the right and ability to control the infringements, as evidenced by the required “something more” than the right to remove or block access to user-submitted infringing material.

Climate change is a significant and complex problem facing the world today. To solve the problem will require the coordinated efforts of both the public and private sectors. As with earlier challenges of global significance (such as the polio epidemic), new and improved technologies promise solutions.

You know when you break up with someone and they just don’t get the message? A few months later, they’re trying again, testing the waters with a few small things that just keep getting bigger. They friend you again on Facebook. They start liking your posts. They show up at a party they expect you to be at. They ask you for drinks, just to “catch up,” you know? And then they talk about the way things used to be, and if only you two could try again. And you’re like, “What part of ‘I never want you to be a part of my life’ did you not understand?”

On Nov. 14, a New York federal court judge ruled to uphold Google’s ambitious project to scan and digitize millions of books from cooperating libraries into a massive, searchable online database. This was a victory not only for Google but also for the greater public good. Judge Denny Chin dismissed a copyright lawsuit brought by authors, finding that Google’s copying and indexing of more than 20 million books to create a new, highly useful search tool is protected by fair use.

In their essay “Fake It Till You Make It” (July/August 2013), Kal Raustiala and Christopher Sprigman urged the United States to “relax” when it comes to the flagrant disregard for intellectual property laws in China. The authors make two essential arguments: first, that the United States in its early days, like China today, was a “pirate nation,” and second, that copying drove the United States’ economic growth.

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Sarah Morris is a well-known multimedia artist and filmmaker. In 2007, she debuted her "Origami" series, 24 paintings in which she reworked, redesigned, and reshaped origami crease patterns on canvas. Several origami artists sued Morris for copyright infringement, arguing Morris had unduly appropriated their allegedly copyrightable origami crease patterns in developing the "Origami" series. The Fair Use Project teamed up with attorneys Bob Clarida and Donn Zaretsky to defend Morris. We briefed the fair use issues on summary judgment.

We filed an amicus brief in the Second Circuit on behalf of The Andy Warhol Foundation for the Visual Arts urging the appeals court to reverse a district court decision that ignored established fair use principles that many artists rely upon in creating their work.

“It’s a targeted program that’s good for limiting the supply of patents to the very worst actors who use litigation to shake down people for settlements,” he said. “But it doesn’t stop problems with patent quality and with operating companies attacking each other.”

"To give just a sense of just how out of touch the law has become, I askedDaniel Nazer, an attorney with the Electronic Frontier Foundation, to highlight the worst patents he’s come across this year. Nazer, who holds the Mark Cuban Chair to Eliminate Stupid Patents (yes, really), had little trouble coming up with these four, culled from a monthly “Stupid Patent of the Month” post he writes for the EFF site.

As Nazer says, “In a world with 400,000 software patents, everyone is an infringer.”"

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Please RSVP http://bpfairuse.eventbrite.com Password: 950battery The song you sampled for an intro sequence that you don’t have the license for- The uncredited movie clips you inserted into a montage- The image you pulled from social media- You can use those in your production, because they’re all covered by Fair Use ... right?

Right of publicity law is a mess. Courts apply a variety of tests and apply these tests inconsistently to different forms of media. At the same time, the right of publicity impacts a wide range of speech--from movies, to computer games, to baseball cards. Uncertainty about the relevant standards makes it difficult to advise clients about the scope of the right.

Three dimensional printing turns bits into atoms. The technology is simply amazing. These machines draw on programming, art and engineering to enable people to design and build intricate, beautiful, functional jewelry, machine parts, toys and even shoes. In the commercial sector, 3D printing can revolutionize supply chains as well. As the public interest group Public Knowledge wrote once, "It will be awesome if they don't screw it up."

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CIS Affiliate Scholar David Levine interviews Pedro Roffe of the International Centre for Trade and Sustainable Development and Prof. Xavier Seuba of the University of Strasbourg, co-editors of ACTA and the Plurilateral Enforcement Agenda.

CIS Affiliate Scholar David Levine interviews Elizabeth Townsend Gard of Tulane University Law School and Ron Gard of Limited Times LLC, on The Durationator, an online tool to determine whether any work of authorship is covered by copyright, and social entrepreneurship.

CIS Affiliate Scholar David Levine interviews James Grimmelmann of the University of Maryland School of Law and David Post of Temple University School of Law, on the recent US Supreme Court decision in ABC, Inc. v. Aereo and Facebook’s emotional manipulation study.